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Large Bank Lied about Hedge Fund Due Diligence Process

The SEC fined a large commercial bank for failing to disclose that it only recommended hedge funds that paid a portion of the management fee back to the bank.  The bank marketed a robust due diligence process conducted by a purportedly independent, in-house research group performing a multi-step due diligence process to select hedge funds from an “extremely large universe.”  In fact, the bank only recommended hedge funds that paid back management fees that it called “retrocessions.”  Although the bank disclosed that it might receive revenue sharing and the amount actually received from each hedge fund, the actual due diligence process did not comport with marketing promises.  The bank, which is not a registered adviser or broker-dealer, was charged with violating the Securities Act’s anti-fraud provisions (17(a)(2)).

Check the marketing team’s enthusiasm at the door.  The SEC doesn’t allow firms an exception from the securities laws for product hype, regardless of how clients/investors may perceive the statements.  Rather than caveat emptor (buyer beware), caveat venditor (seller beware) governs sales of securities products.  

Fund Manager Did Not Conduct Adequate Investment Due Diligence

A formerly-registered fund manager was fined and censured for failing to conduct sufficient due diligence on underlying investments, which resulted in significant losses for the funds.  The fund manager invested $4 Million in a Norwegian trading strategy that promised repayment plus $40 Million in interest.  The fund manager represented that he conducted significant due diligence and that his financial advisers approved the investment.  In fact, the fund manager’s due diligence consisted of several phone calls and some Google searches.  Also, his lawyer, accountant, and fund administrator counseled further due diligence before investing. 

It is unclear how much due diligence is enough, but an investment that promises a 1000% return likely requires more than a few phone calls.  When financial professionals recommend a losing investment, they bear the burden of proving that their recommendations and due diligence satisfied their fiduciary and/or suitability obligations. 

BDs Must Implement Beneficial Ownership Due Diligence by May

Pursuant to recent FINRA guidance, broker-dealers will have until May 11, 2018 to amend their Anti-Money Laundering programs to include risk-based procedures for conducting ongoing customer due diligence as required FinCEN’s Customer Due Diligence Rule.  Most significantly, BDs must identify the beneficial owner of each account and implement risk-based procedures for verifying customer identities.  FINRA and FinCEN will allow firms to obtain such information by using FinCEN’s standard certification form.  FINRA calls this beneficial ownership requirement the “fifth pillar” of a required AML program, which must also include reasonable policies and procedures, independent testing, a designated AML officer, and ongoing training.

OUR TAKE: Next May might seem like a long way off, but the work required to implement this fifth pillar will be significant.  We recommend following FINRA’s guidance and using the FinCEN form as a starting point.

 

Underwriter Failed to Conduct Due Diligence

A municipal underwriter was fined and censured, and its principal was suspended from the industry, for failing to conduct adequate due diligence.  The public disclosure documents for the bond offerings at issue made misrepresentations about compliance with Continuing Disclosure Agreements.  The SEC faults the underwriter for failing to conduct due diligence to determine the (in)accuracy of those misrepresentations, including its failure to check the Electronic Municipal Market Access website maintained by the MSRB.  As a result, the underwriter violated several provisions of the securities laws by failing “to form a reasonable basis for believing in the truthfulness of the [issuer’s] assertions that [it] had complied with its prior CDAs.”

OUR TAKE: Market participants have an affirmative obligation to conduct due diligence on issuers and their disclosure statements.  This obligation applies to underwriters, administrators, lawyers, consultants, and auditors, who, since the Madoff scandal, have found themselves in the regulatory cross-hairs as market watchdogs.